DISTRICTS ‑- SEWER ‑- WATER ‑- DRAINAGE ‑- CITIES AND TOWNS ‑- RECORDING UNDER RCW 65.08.170 AS CONDITION PRECEDENT TO IMPOSITION OF CONNECTION CHARGES

DISTRICTS ‑- SEWER ‑- WATER ‑- DRAINAGE ‑- CITIES AND TOWNS ‑- RECORDING UNDER RCW 65.08.170 AS CONDITION PRECEDENT TO IMPOSITION OF CONNECTION CHARGES

Although RCW 65.08.170 requires a city, town, or other municipality (as defined in RCW 35.91.020) to record certain connection charges in the office in which deeds are recorded, neither that statute nor any other applicable law purports to set forth the legal consequences of a failure to comply or, specifically, to say that recording in any way affects the legality of those charges as between the municipality and those who tap in, or hook up, to and use the particular facilities in question; therefore, a person may not connect with or tap into sewer or water facilities without paying the connection fee even though such fee has not been recorded pursuant to RCW 65.08.170.

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                                                                December 20, 1979

Honorable Barbara Granlund
State Representative, 26th Dist.
3777 Pine Tree Drive
Port Orchard, Washington 98366                                                                                                               Cite as:  AGLO 1979 No. 41

Dear Representative Granlund:

            By letter previously acknowledged you directed our attention to the provisions of RCW 65.08.170 and 65.08.180 which relate to the recording of water or sewer connection charges by municipalities.  You then requested our opinion on the following questions:

            "(1) May a person connect with or tap into sewer or water facilities without paying the connection fees when such fees have not been recorded?

            "(2) May a local governmental entity record and collect connection fees subsequent to a request to connect with or tap into the sewer or water facilities?"

             [[Orig. Op. Page 2]]

            We answer your first question in the negative and respond to your second question in the manner set forth below.

                                                                     ANALYSIS

            RCW 65.08.170 codifies the provisions of § 1, chapter 72, Laws of 1977, and reads as follows:

            "When any municipality as defined in RCW 35.91.020 or any county has levied or intends to levy a charge on property pertaining to:

            "(1) The amount required by the provisions of a contract pursuant to RCW 35.91.020 under which the water or sewer facilities so tapped into or used were constructed; or

            "(2) Any connection charges which are in fact reimbursement for the cost of facilities constructed by the sale of revenue bonds; or

            "(3) The additional connection charge authorized in RCW 35.92.025;

            "such municipality or county shall record in the office in which deeds are recorded of the county or counties in which such facility is located a notice of additional tap or connection charges.  Such notice shall contain either the legal description of the land affected by such additional tap or connection charges or a map making appropriate references to the United States government survey showing in outline the land affected or to be affected by such additional tap or connection charges."

            RCW 65.08.180, in turn, codifies § 2 of the same 1977 act and provides that:

            "The notice required by RCW 65.08.170, when duly recorded, shall be effective until  [[Orig. Op. Page 3]] there is recorded in the same office in which the notice was recorded a certificate of payment and release executed by the municipality or county.  Such certificate shall contain a legal description of the particular parcel of land so released and shall be recorded within thirty days of the date of payment thereof."

            Question (1):

            Nowhere within this act, however, are the legal consequences of a failure to comply stated.  Specifically, there is nothing in the 1977 law itself, or in any other applicable statute, which purports to say that the recording, by a municipality, of water or sewer facilities connection charges should be deemed in any way to effect the legality of those charges as between the municipality and those who tap in, or hook up, to and use the particular facilities in question.  We therefore answer your first question in the negative.  A person may not connect with or tap into municipal sewer or water facilities without paying the connection fee simply because such fee has not been recorded pursuant to RCW 65.08.170, supra, since compliance with the provisions of that statute has not been stated by the legislature to constitute a condition precedent to the imposition of charges.

            Question (2):

            We are not entirely certain we understand your second question which asks:

            "May a local governmental entity record and collect connection fees subsequent to a request to connect with or tap into the sewer or water facilities?"

            If, however, you mean to ask whether a municipality must have recorded its connection charges under RCW 65.08.180, supra, prior to receiving a request to be hooked in in order to charge for the particular connection, we would again answer in the negative for the same reason as we thus responded to your first question.

             [[Orig. Op. Page 4]]

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

Philip H. Austin
Deputy Attorney General